Can I be charged with possession with intent if I had no drugs on me?

A common defense in any Massachusetts drug crime is that the Commonwealth cannot prove that the individual possessed illegal narcotics. Possession under the law can be both actual and constructive. This can be confusing because often a police officer will charge an individual with a possessory crime, such as Possession with the intent to distribute marijuana, when the person did not actually possess any illegal drugs. This can occur when drugs are present during a police executed search warrant, this occurs sometimes in colleges and to people who happen to be visiting someone who is a target of a drug investigation.

Understanding Possession under Massachusetts drug laws:

• Possession can be Actual or Constructive:
• Actual possession is when you have drugs on your person, such as in your pocket when searched.

Constructive possession, means that you do not have drugs physically on your person but have the ability to exercise custody or control over the narcotics. Narcotics can be constructively possessed by several individuals. In a constructive possession case, the Commonwealth must prove that you had the ability to exercise dominion and control over the narcotics.

• How does the Commonwealth establish constructive possession?


Often this is proven by showing that your personal property is in close physical proximity to the illegal narcotics. The Commonwealth will rely on circumstantial evidence to prove a constructive possession case.
Constructive possession cases arise in a search of a house or car.

• Drug Raids in a home:
When a house is searched for drugs and drugs are found, a common defense is that the person charged does not possess the narcotics. The individual arrested may not be the target of the warrant strengthening the argument that there is no connection to the residence.
Common defenses include:
Being a house guest
Merely being present
A criminal defense lawyer would have to present evidence showing that the person charged has little connection to the residence searched.
• Constructive possession in a Car Stop:
Constructive possession arguments can also arise in the case of a car stop, where multiple individuals are found in a car containing illegal drugs.

If you are charged with intent to distribute and were merely present, in the wrong place at the wrong time and have no connection to the residence, you likely have a strong defense of lack of possession. You can call 781-686-5924 to discuss your case.

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